G.R. No.

L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO REYES, and
TERESITA CUENCO GONZALEZ, respondents.

Ambrosio Padilla Law Office for petitioner. Jalandoni and Jamir for respondents.

TEEHANKEE, J.:

Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R, promulgated 21
November 1964, and its subsequent Resolution promulgated 8 July 1964 denying petitioner's Motion for Reconsideration.

The pertinent facts which gave rise to the herein petition follow:

On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila. He was survived by
his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed
Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first marriage,
respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo
Cuenco Reyes and Teresita Cuenco Gonzales, all of legal age and residing in Cebu.

On 5 March 1964, (the 9th day after the death of the late Senator) 1 respondent Lourdes Cuenco filed a Petition for Letters
of Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-R), alleging among other things, that the
late senator died intestate in Manila on 25 February 1964; that he was a resident of Cebu at the time of his death; and that
he left real and personal properties in Cebu and Quezon City. On the same date, the Cebu court issued an order setting the
petition for hearing on 10 April 1964, directing that due notice be given to all the heirs and interested persons, and
ordering the requisite publication thereof at LA PRENSA, a newspaper of general circulation in the City and Province of
Cebu.

The aforesaid order, however, was later suspended and cancelled and a new and modified one released on 13 March 1964,
in view of the fact that the petition was to be heard at Branch II instead of Branch I of the said Cebu court. On the same
date, a third order was further issued stating that respondent Lourdes Cuenco's petition for the appointment of a special
administrator dated 4 March 1964 was not yet ready for the consideration of the said court, giving as reasons the
following:

It will be premature for this Court to act thereon, it not having yet regularly acquired jurisdiction to try
this proceeding, the requisite publication of the notice of hearing not yet having been complied with.
Moreover, copies of the petition have not been served on all of the heirs specified in the basic petition
for the issuance of letters of administration.2

In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu petition) herein petitioner Rosa
Cayetano Cuenco filed a petition with the court of first instance of Rizal (Quezon City) for the probate of the
deceased's last will and testament and for the issuance of letters testamentary in her favor, as the surviving widow and
executrix in the said last will and testament. The said proceeding was docketed as Special Proceeding No. Q-7898.

Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano Cuenco filed in said Cebu court an
Opposition and Motion to Dismiss, dated 30 March 1964, as well as an Opposition to Petition for Appointment of Special
Administrator, dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding in abeyance its resolution on
petitioner's motion to dismiss "until after the Court of First Instance of Quezon City shall have acted on the petition
for probate of that document purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco."3 Such order of the Cebu court deferring to the probate proceedings in the Quezon City court was neither
excepted to nor sought by respondents to be reconsidered or set aside by the Cebu court nor did they challenge the same
by certiorari or prohibition proceedings in the appellate courts.

Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10 April 1964, opposing
probate of the will and assailing the jurisdiction of the said Quezon City court to entertain petitioner's petition for probate
and for appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive jurisdiction vested by her
petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed that Sp. Proc. No. Q-7898 be dismissed
for lack of jurisdiction and/or improper venue.

In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal reason the
"precedence of probate proceeding over an intestate proceeding." 4 The said court further found in said order that
the residence of the late senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon City. The
pertinent portion of said order follows:
 On the question of residence of the decedent, paragraph 5 of the opposition and motion to dismiss reads
as follows: "that since the decedent Don Mariano Jesus Cuenco was a resident of the City of Cebu at the
time of his death, the aforesaid petition filed by Rosa Cayetano Cuenco on 12 March 1964 was not filed
with the proper Court (wrong venue) in view of the provisions of Section 1 of Rule 73 of the New Rules
of Court ...". From the aforequoted allegation, the Court is made to understand that the oppositors do not
mean to say that the decedent being a resident of Cebu City when he died, the intestate proceedings in
Cebu City should prevail over the probate proceedings in Quezon City, because as stated above the
probate of the will should take precedence, but that the probate proceedings should be filed in the Cebu
City Court of First Instance. If the last proposition is the desire of the oppositors as understood by this
Court, that could not also be entertained as proper because paragraph 1 of the petition for the probate of
the will indicates that Don Mariano Jesus Cuenco at the time of his death was a resident of Quezon City
at 69 Pi y Margal. Annex A (Last Will and Testament of Mariano Jesus Cuenco) of the petition for
probate of the will shows that the decedent at the time when he executed his Last Will clearly stated that
he is a resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City, and also of the City of Cebu. He
made the former as his first choice and the latter as his second choice of residence." If a party has two
residences, the one will be deemed or presumed to his domicile which he himself selects or considers to
be his home or which appears to be the center of his affairs. The petitioner, in thus filing the instant
petition before this Court, follows the first choice of residence of the decedent and once this court
acquires jurisdiction of the probate proceeding it is to the exclusion of all others. 5

Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said order of 11 April 1964 asserting
its exclusive jurisdiction over the probate proceeding as deferred to by the Cebu court was denied on 27 April 1964 and a
second motion for reconsideration dated 20 May 1964 was likewise denied.

On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of the last will of the decedent was
called three times at half-hour intervals, but notwithstanding due notification none of the oppositors appeared and the
Quezon City court proceeded at 9:00 a.m. with the hearing in their absence.

As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted that respondents-oppositors had
opposed probate under their opposition and motion to dismiss on the following grounds:

(a) That the will was not executed and attested as required by law;

(b) That the will was procured by undue and improper pressure and influence on the part of the
beneficiary or some other persons for his benefit;

(c) That the testator's signature was procured by fraud and/or that the testator acted by mistake and did
not intend that the instrument he signed should be his will at the time he affixed his signature thereto. 6

The Quezon City court further noted that the requisite publication of the notice of the hearing had been duly complied
with and that all the heirs had been duly notified of the hearing, and after receiving the testimony of the three instrumental
witnesses to the decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and
of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will, and the documentary evidence (such as
the decedent's residence certificates, income tax return, diplomatic passport, deed of donation) all indicating that the
decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in his last will, the Quezon City court
in its said order of 15 May 1964 admitted to probate the late senator's last will and testament as having been "freely and
voluntarily executed by the testator" and "with all formalities of the law" and appointed petitioner-widow as executrix of
his estate without bond "following the desire of the testator" in his will as probated.

Instead of appealing from the Quezon City court's said order admitting the will to probate and naming petitioner-widow
as executrix thereof, respondents filed a special civil action of certiorari and prohibition with preliminary injunction with
respondent Court of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from proceeding with case
No. Q-7898.

On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents (petitioners therein) and against
the herein petitioner, holding that:

Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the estate of a deceased
person, covers both testate and intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI having been
filed ahead, it is that court whose jurisdiction was first invoked and which first attached. It is that court
which can properly and exclusively pass upon the factual issues of (1) whether the decedent left or did
not leave a valid will, and (2) whether or not the decedent was a resident of Cebu at the time of his
death.

Considering therefore that the first proceeding was instituted in the Cebu CFI (Special Proceeding 2433-
R), it follows that the said court must exercise jurisdiction to the exclusion of the Rizal CFI, in which
the petition for probate was filed by the respondent Rosa Cayetano Cuenco (Special Proceeding Q-
7898). The said respondent should assert her rights within the framework of the proceeding in the Cebu
CFI, instead of invoking the jurisdiction of another court.
 The respondents try to make capital of the fact that on March 13, 1964, Judge Amador Gomez of the
Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for appointment of special administrator
was "not yet ready for the consideration of the Court today. It would be premature for this Court to act
thereon, it not having yet regularly acquired jurisdiction to try this proceeding ... . " It is sufficient to
state in this connection that the said judge was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the moment a petition is filed, but only to
the exercise of jurisdiction in relation to the stage of the proceedings. At all events, jurisdiction is
conferred and determined by law and does not depend on the pronouncements of a trial judge.

The dispositive part of respondent appellate court's judgment provided as follows:

ACCORDINGLY, the writ of prohibition will issue, commanding and directing the respondent Court of
First Instance of Rizal, Branch IX, Quezon City, and the respondent Judge Damaso B. Tengco to refrain
perpetually from proceeding and taking any action in Special Proceeding Q-7898 pending before the
said respondent court. All orders heretofore issued and actions heretofore taken by said respondent court
and respondent Judge, therein and connected therewith, are hereby annulled. The writ of injunction
heretofore issued is hereby made permanent. No pronouncement as to costs.

Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals, dated 8 July 1965;
hence the herein petition for review on certiorari.

The principal and decisive issue at bar is, theretofore, whether the appellate court erred in law in issuing the writ of
prohibition against the Quezon City court ordering it to refrain perpetually from proceeding with the testateproceedings
and annulling and setting aside all its orders and actions, particularly its admission to probate of the decedent's last will
and testament and appointing petitioner-widow as executrix thereof without bond in compliance with the testator's express
wish in his testament. This issue is tied up with the issue submitted to the appellate court, to wit, whether the Quezon City
court acted without jurisdiction or with grave abuse of discretion in taking cognizance and assuming exclusive jurisdiction
over the probate proceedings filed with it, in pursuance of the Cebu court's order of 10 April 1964 expressly consenting in
deference to the precedence of probate over intestate proceedings that it (the Quezon City court) should first act "on the
petition for probate of the document purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco" - which order of the Cebu court respondents never questioned nor challenged by prohibition
or certiorari proceedings and thus enabled the Quezon City court to proceed without any impediment or obstruction, once
it denied respondent Lourdes Cuenco's motion to dismiss the probate proceeding for alleged lack of jurisdiction or
improper venue, to proceed with the hearing of the petition and to admit the will to probate upon having been satisfied as
to its due execution and authenticity.

The Court finds under the above-cited facts that the appellate court erred in law in issuing the writ of prohibition against
the Quezon City court from proceeding with the testate proceedings and annulling and setting aside all its orders and
actions, particularly its admission to probate of the deceased's last will and testament and appointing petitioner-widow as
executrix thereof without bond pursuant to the deceased testator's express wish, for the following considerations: —

1. The Judiciary Act7 concededly confers original jurisdiction upon all Courts of First Instance over "all matter of probate,
both of testate and intestate estates." On the other hand, Rule 73, section of the Rules of Court lays down the rule of
venue, as the very caption of the Rule indicates, and in order to prevent conflict among the different courts which
otherwise may properly assume jurisdiction from doing so, the Rule specifies that "the court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited Rule
provides:

Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance in the Province in which he resides at the
time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of the
province in which he had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence, of the decedent, or of the location of his estate, shall
not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record. (Rule 73)8

It is equally conceded that the residence of the deceased or the location of his estate is not an element of jurisdiction over
the subject matter but merely of venue. This was lucidly stated by the late Chief Justice Moran in Sy Oa vs. Co Ho9 as
follows:

We are not unaware of existing decisions to the effect that in probate cases the place of residence of the
deceased is regarded as a question of jurisdiction over the subject-matter. But we decline to follow this
view because of its mischievous consequences. For instance, a probate case has been submitted in good
faith to the Court of First Instance of a province where the deceased had not resided. All the parties,
however, including all the creditors, have submitted themselves to the jurisdiction of the court and the
case is therein completely finished except for a claim of a creditor who also voluntarily filed it with said
court but on appeal from an adverse decision raises for the first time in this Court the question of
jurisdiction of the trial court for lack of residence of the deceased in the province. If we consider such
 question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the effect
shall be that the whole proceedings including all decisions on the different incidents which have arisen
in court will have to be annulled and the same case will have to be commenced
anew before another court of the same rank in another province. That this is of mischievous effect in
the prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio
& Co., G.R. No. 48206, December 31, 1942) Furthermore, section 600 of Act No. 190, 10 providing that
the estate of a deceased person shall be settled in the province where he had last resided, could not have
been intended as defining the jurisdiction of the probate court over the subject-matter, because such
legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we
have said time and again, procedure is one thing and jurisdiction over the subject matter is another.
(Attorney-General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction — Act No.
136, 11Section 56, No. 5 — confers upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased. Since, however, there are many courts of First
Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place
where each case shall be brought. Thus, the place of residence of the deceased is not an element of
jurisdiction over the subject-matter but merely of venue. And it is upon this ground that in the new
Rules of Court the province where the estate of a deceased person shall be settled is properly called
"venue".

It should be noted that the Rule on venue does not state that the court with whom the estate or intestate petition is first
filed acquires exclusive jurisdiction.

The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts."

A fair reading of the Rule — since it deals with venue and comity between courts of equal and co-ordinate jurisdiction —
indicates that the court with whom the petition is first filed, must also first take cognizance of the settlement of the
estate in order to exercise jurisdiction over it to the exclusion of all other courts.

Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented in
another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their
minor children, and that the allegation of the intestate petition before it stating that the decedent died intestatemay be
actually false, may decline to take cognizance of the petition and hold the petition before it in abeyance, and instead defer
to the second court which has before it the petition for probate of the decedent's alleged last will.

2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss Lourdes' intestate
petition, it issued its order holding in abeyance its action on the dismissal motion and deferred to the Quezon City court,
awaiting its action on the petition for probate before that court. Implicit in the Cebu court's order was that if the will was
duly admitted to probate, by the Quezon City court, then it would definitely decline to take cognizance of
Lourdes' intestate petition which would thereby be shown to be false and improper, and leave the exercise of jurisdiction
to the Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu court left it to the
Quezon City court to resolve the question between the parties whether the decedent's residence at the time of his death
was in Quezon City where he had his conjugal domicile rather than in Cebu City as claimed by respondents. The Cebu
court thus indicated that it would decline to take cognizance of the intestate petition before it and instead defer to the
Quezon City court, unless the latter would make a negative finding as to the probate petition and the residence of the
decedent within its territory and venue.

3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with grave abuse of
jurisdiction in declining to take cognizance of the intestate petition and deferring to the Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in taking cognizance of and
acting on the probate petition since under Rule 73, section 1, the Cebu court must first take cognizance over the estate of
the decedent and must exercise jurisdiction to exclude all other courts, which the Cebu court declined to do. Furthermore,
as is undisputed, said rule only lays down a rule of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.

Since the Quezon City court took cognizance over the probate petition before it and assumed jurisdiction over the estate,
with the consent and deference of the Cebu court, the Quezon City court should be left now, by the same rule of venue of
said Rule 73, to exercise jurisdiction to the exclusion of all other courts.

Under the facts of the case and where respondents submitted to the Quezon City court their opposition to probate of the
will, but failed to appear at the scheduled hearing despite due notice, the Quezon City court cannot be declared, as the
appellate court did, to have acted without jurisdiction in admitting to probate the decedent's will and appointing petitioner-
widow as executrix thereof in accordance with the testator's testamentary disposition.

4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts analogous to the
present case 13 is authority against respondent appellate court's questioned decision.

In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate proceedings in this wise:
 It can not be denied that a special proceeding intended to effect the distribution of the estate of a
deceased person, whether in accordance with the law on intestate succession or in accordance with his
will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however,
that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for the settlement
of the estate of a deceased person take precedence over intestate proceedings for the same purpose.
Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of
first instance it is found that the decedent had left a last will, proceedings for the probate of the latter
should replace the intestate proceedings even if at that state an administrator had already been
appointed, the latter being required to render final account and turn over the estate in his possession to
the executor subsequently appointed. This however, is understood to be without prejudice that should
the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As
already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority
over intestate proceedings. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City court) although
opining that certain considerations therein "would seem to support the view that [therein respondent] should have
submitted said will for probate to the Negros Court, [in this case, the Cebu court] either in a separate special proceeding or
in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344," 15 thus:

But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona
filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the
latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper venuetherefor.

It is well settled in this jurisdiction that wrong venue is merely a waivable procedural defect, and, in the
light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is
enough to consider in this connection that petitioner knew of the existence of a will executed by Juan
Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition
filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence
(presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with
the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of
Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with
the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and
for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the
Manila Court not only to appoint an administrator with the will annexed but also to admit said will to
probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to
assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all
the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence.
Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a
lower court even if the latter was not the proper venue therefor, if the net result would be to have the
same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present
where the objection against said proceedings is raised too late. 16

5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over the decedent's estate on the
basis of the will duly presented for probate by petitioner-widow and finding that Quezon City was the
first choiceof residence of the decedent, who had his conjugal home and domicile therein — with the deference in comity
duly given by the Cebu court — could not be contested except by appeal from said court in the original case. The last
paragraph of said Rule expressly provides:

... The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or
of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction appears on the record. (Rule 73)

The exception therein given, viz, "when the want of jurisdiction appears on the record" could probably be properly
invoked, had such deference in comity of the Cebu court to the Quezon City court not appeared in the record, or had the
record otherwise shown that the Cebu court had taken cognizance of the petition before it and assumed jurisdiction.

6. On the question that Quezon City established to be the residence of the late senator, the appellate court while
recognizing that "the issue is a legitimate one" held in reliance on Borja vs. Tan 17 that.

... The issue of residence comes within the competence of whichever court is considered to prevail in
the exercise jurisdiction - in this case, the Court of First Instance of Cebu as held by this Court.
Parenthetically, we note that the question of the residence of the deceased is a serious one, requiring
both factual and legal resolution on the basis of ample evidence to be submitted in the ordinary course
of procedure in the first instance, particularly in view of the fact that the deceased was better known as
the Senator from Cebu and the will purporting to be his also gives Cebu, besides Quezon City, as his
residence. We reiterate that this matter requires airing in the proper court, as so indicated in the leading
and controlling case of Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July 27, 1955.
In the case at bar, however, the Cebu court declined to take cognizance of the intestate petition first filed with it and
deferred to the testate proceedings filed with the Quezon City court and in effect asked the Quezon City court to
determine the residence of the decedent and whether he did leave a last will and testament upon which would depend the
proper venue of the estate proceedings, Cebu or Quezon City. The Quezon City court having thus determined in effect for
both courts — at the behest and with the deference and consent of the Cebu court — that Quezon City was the actual
residence of the decedent who died testate and therefore the proper venue, the Borja ruling would seem to have no
applicability. It would not serve the practical ends of justice to still require the Cebu court, if the Borja ruling is to be held
applicable and as indicated in the decision under review, to determine for itself the actual residence of the decedent (when
the Quezon City court had already so determined Quezon City as the actual residence at the Cebu court's behest and
respondents have not seriously questioned this factual finding based on documentary evidence) and if the Cebu court
should likewise determine Quezon City as the actual residence, or its contrary finding reversed on appeal, only then to
allow petitioner-widow after years of waiting and inaction to institute the corresponding proceedings in Quezon City.

7. With more reason should the Quezon City proceedings be upheld when it is taken into consideration that Rule 76,
section 2 requires that the petition for allowance of a will must show: "(a) the jurisdictional facts." Such "jurisdictional
facts" in probate proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign
country, his having left his estate in such province."

This tallies with the established legal concept as restated by Moran that "(T)he probate of a will is a proceeding in rem.
The notice by publication as a pre-requisite to the allowance of a will, is a constructive notice to the whole world, and
when probate is granted, the judgment of the court is binding upon everybody, even against the State. The probate of a
will by a court having jurisdiction thereof is conclusive as to its due execution and validity." 19 The Quezon City court
acted regularly within its jurisdiction (even if it were to be conceded that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and deferring to it,) in admitting the decedent's last will to probate and
naming petitioner-widow as executrix thereof. Hence, the Quezon city court's action should not be set aside by a writ of
prohibition for supposed lack of jurisdiction as per the appellate court's appealed decision, and should instead be sustained
in line with Uriarte, supra, where the Court, in dismissing the certiorari petition challenging the Manila court's action
admitting the decedent's will to probate and distributing the estate in accordance therewith in the second proceeding, held
that "it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other
court of similar jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in the
administration of justice" of considering the question of residence as affecting the jurisdiction of the trial court and
annulling the whole proceedings only to start all over again the same proceedings before another court of the same rank in
another province "is too obvious to require comment."

8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives gets first to file a
petition for settlement of the decedent's estate, then the established jurisprudence of the Court that Rule 73, section 1
provides only a rule of venue in order to preclude different courts which may properly assume jurisdiction from doing so
and creating conflicts between them to the detriment of the administration of justice, and that venue is waivable, would be
set at naught. As between relatives who unfortunately do not see eye to eye, it would be converted into a race as to who
can file the petition faster in the court of his/her choice regardless of whether the decedent is still in cuerpo presente and
in disregard of the decedent's actual last domicile, the fact that he left a last will and testament and the right of his
surviving widow named as executrix thereof. Such dire consequences were certainly not intended by the Rule nor would
they be in consonance with public policy and the orderly administration of justice.

9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules of venue, and
despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed an intestate petition in the Cebu court
earlier by a week's time on 5 March 1964) deferred to the Quezon City court where petitioner had within fifteen days (on
March 12, 1964) after the decedent's death (on February 25, 1964) timely filed the decedent's last will and petitioned for
letters testamentary and is admittedly entitled to preference in the administration of her husband's estate, 20 would be
compelled under the appealed decision to have to go all the way to Cebu and submit anew the decedent's will there for
probate either in a new proceeding or by asking that the intestate proceedings be convertedinto a testate proceeding —
when under the Rules, the proper venue for the testate proceedings, as per the facts of record and as already affirmed by
the Quezon City court is Quezon City, where the decedent and petitioner-widow had their conjugal domicile.

It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the decedent's last will
and settle his estate in accordance therewith, and a disregard of her rights under the rule on venue and the law on
jurisdiction to require her to spend much more time, money and effort to have to go from Quezon City to the Cebu court
everytime she has an important matter of the estate to take up with the probate court.

It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since petitioner's marriage
has been dissolved with the death of her husband, their community property and conjugal estate have to be administered
and liquidated in the estate proceedings of the deceased spouse. Under the appealed decision, notwithstanding that
petitioner resides in Quezon City, and the proper venue of the testate proceeding was in Quezon City and the Quezon City
court properly took cognizance and exercised exclusive jurisdiction with the deference in comity and consent of the Cebu
court, such proper exercise of jurisdiction would be nullified and petitioner would have to continually leave her residence
in Quezon City and go to Cebu to settle and liquidate even her own community property and conjugal estate with the
decedent.
10. The Court therefore holds under the facts of record that the Cebu court did not act without jurisdiction nor with grave
abuse of discretion in declining to take cognizance of the intestate petition and instead deferring to the testateproceedings
filed just a week later by petitioner as surviving widow and designated executrix of the decedent's last will, since the
record before it (the petitioner's opposition and motion to dismiss) showed the falsity of the allegation in
the intestate petition that the decedent had died without a will. It is noteworthy that respondents never challenged
by certiorari or prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the probate proceedings
before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of deference) to exercise
jurisdiction and admit the decedent's will to probate.

For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction nor with grave abuse
of discretion in admitting the decedent's will to probate and appointing petitioner as executrix in accordance with its
testamentary disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1 lay down only a rule
of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964 admitting the will to
probate and appointing petitioner as executrix thereof, and said court concededly has jurisdiction to issue said order, the
said order of probate has long since become final and can not be overturned in a special civic action of prohibition.

11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over all inferior courts, 22 it
may properly determine, as it has done in the case at bar, that venue was properly assumed by and transferredto
the Quezon City court and that it is the interest of justice and in avoidance of needless delay that the Quezon City court's
exercise of jurisdiction over the testate estate of the decedent (with the due deference and consent of the Cebu court) and
its admission to probate of his last will and testament and appointment of petitioner-widow as administratrix without bond
in pursuance of the decedent's express will and all its orders and actions taken in the testate proceedings before it be
approved and authorized rather than to annul all such proceedings regularly had and to repeat and duplicate the same
proceedings before the Cebu court only to revert once more to the Quezon City court should the Cebu court find that
indeed and in fact, as already determined by the Quezon City court on the strength of incontrovertible documentary
evidence of record, Quezon City was the conjugal residence of the decedent.

ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the Court of Appeals
and the petition for certiorari and prohibition with preliminary injunction originally filed by respondents with the Court of
Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No costs.

G.R. No. L-23145 November 29, 1968

TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG, ancillary administrator-
appellee,
vs.
BENGUET CONSOLIDATED, INC., oppositor-appellant.

Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.

Ross, Salcedo, Del Rosario, Bito and Misa for oppositor-appellant.

FERNANDO, J.:

Confronted by an obstinate and adamant refusal of the domiciliary administrator, the County Trust Company of New
York, United States of America, of the estate of the deceased Idonah Slade Perkins, who died in New York City on March
27, 1960, to surrender to the ancillary administrator in the Philippines the stock certificates owned by her in a Philippine
corporation, Benguet Consolidated, Inc., to satisfy the legitimate claims of local creditors, the lower court, then presided
by the Honorable Arsenio Santos, now retired, issued on May 18, 1964, an order of this tenor: "After considering the
motion of the ancillary administrator, dated February 11, 1964, as well as the opposition filed by the Benguet
Consolidated, Inc., the Court hereby (1) considers as lost for all purposes in connection with the administration and
liquidation of the Philippine estate of Idonah Slade Perkins the stock certificates covering the 33,002 shares of stock
standing in her name in the books of the Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs
said corporation to issue new certificates in lieu thereof, the same to be delivered by said corporation to either the
incumbent ancillary administrator or to the Probate Division of this Court." 1

From such an order, an appeal was taken to this Court not by the domiciliary administrator, the County Trust Company of
New York, but by the Philippine corporation, the Benguet Consolidated, Inc. The appeal cannot possibly prosper. The
challenged order represents a response and expresses a policy, to paraphrase Frankfurter, arising out of a specific problem,
addressed to the attainment of specific ends by the use of specific remedies, with full and ample support from legal
doctrines of weight and significance.

The facts will explain why. As set forth in the brief of appellant Benguet Consolidated, Inc., Idonah Slade Perkins, who
died on March 27, 1960 in New York City, left among others, two stock certificates covering 33,002 shares of appellant,
the certificates being in the possession of the County Trust Company of New York, which as noted, is the domiciliary
administrator of the estate of the deceased.2 Then came this portion of the appellant's brief: "On August 12, 1960,
Prospero Sanidad instituted ancillary administration proceedings in the Court of First Instance of Manila; Lazaro A.
Marquez was appointed ancillary administrator, and on January 22, 1963, he was substituted by the appellee Renato D.
Tayag. A dispute arose between the domiciary administrator in New York and the ancillary administrator in the
Philippines as to which of them was entitled to the possession of the stock certificates in question. On January 27, 1964,
the Court of First Instance of Manila ordered the domiciliary administrator, County Trust Company, to "produce and
deposit" them with the ancillary administrator or with the Clerk of Court. The domiciliary administrator did not comply
with the order, and on February 11, 1964, the ancillary administrator petitioned the court to "issue an order declaring the
certificate or certificates of stocks covering the 33,002 shares issued in the name of Idonah Slade Perkins by Benguet
Consolidated, Inc., be declared [or] considered as lost." 3

It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it is immaterial" as far as it is concerned as
to "who is entitled to the possession of the stock certificates in question; appellant opposed the petition of the ancillary
administrator because the said stock certificates are in existence, they are today in the possession of the domiciliary
administrator, the County Trust Company, in New York, U.S.A...." 4

It is its view, therefore, that under the circumstances, the stock certificates cannot be declared or considered as lost.
Moreover, it would allege that there was a failure to observe certain requirements of its by-laws before new stock
certificates could be issued. Hence, its appeal.

As was made clear at the outset of this opinion, the appeal lacks merit. The challenged order constitutes an emphatic
affirmation of judicial authority sought to be emasculated by the wilful conduct of the domiciliary administrator in
refusing to accord obedience to a court decree. How, then, can this order be stigmatized as illegal?

As is true of many problems confronting the judiciary, such a response was called for by the realities of the situation.
What cannot be ignored is that conduct bordering on wilful defiance, if it had not actually reached it, cannot without
undue loss of judicial prestige, be condoned or tolerated. For the law is not so lacking in flexibility and resourcefulness as
to preclude such a solution, the more so as deeper reflection would make clear its being buttressed by indisputable
principles and supported by the strongest policy considerations.

It can truly be said then that the result arrived at upheld and vindicated the honor of the judiciary no less than that of the
country. Through this challenged order, there is thus dispelled the atmosphere of contingent frustration brought about by
the persistence of the domiciliary administrator to hold on to the stock certificates after it had, as admitted, voluntarily
submitted itself to the jurisdiction of the lower court by entering its appearance through counsel on June 27, 1963, and
filing a petition for relief from a previous order of March 15, 1963.

Thus did the lower court, in the order now on appeal, impart vitality and effectiveness to what was decreed. For without it,
what it had been decided would be set at naught and nullified. Unless such a blatant disregard by the domiciliary
administrator, with residence abroad, of what was previously ordained by a court order could be thus remedied, it would
have entailed, insofar as this matter was concerned, not a partial but a well-nigh complete paralysis of judicial authority.

1. Appellant Benguet Consolidated, Inc. did not dispute the power of the appellee ancillary administrator to gain control
and possession of all assets of the decedent within the jurisdiction of the Philippines. Nor could it. Such a power is
inherent in his duty to settle her estate and satisfy the claims of local creditors. 5 As Justice Tuason speaking for this Court
made clear, it is a "general rule universally recognized" that administration, whether principal or ancillary, certainly
"extends to the assets of a decedent found within the state or country where it was granted," the corollary being "that an
administrator appointed in one state or country has no power over property in another state or country." 6

It is to be noted that the scope of the power of the ancillary administrator was, in an earlier case, set forth by Justice
Malcolm. Thus: "It is often necessary to have more than one administration of an estate. When a person dies intestate
owning property in the country of his domicile as well as in a foreign country, administration is had in both countries.
That which is granted in the jurisdiction of decedent's last domicile is termed the principal administration, while any other
administration is termed the ancillary administration. The reason for the latter is because a grant of administration does
not ex proprio vigore have any effect beyond the limits of the country in which it is granted. Hence, an administrator
appointed in a foreign state has no authority in the [Philippines]. The ancillary administration is proper, whenever a
person dies, leaving in a country other than that of his last domicile, property to be administered in the nature of assets of
the deceased liable for his individual debts or to be distributed among his heirs."7

It would follow then that the authority of the probate court to require that ancillary administrator's right to "the stock
certificates covering the 33,002 shares ... standing in her name in the books of [appellant] Benguet Consolidated, Inc...."
be respected is equally beyond question. For appellant is a Philippine corporation owing full allegiance and subject to the
unrestricted jurisdiction of local courts. Its shares of stock cannot therefore be considered in any wise as immune from
lawful court orders.

Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue 8 finds application. "In the instant case, the
actual situs of the shares of stock is in the Philippines, the corporation being domiciled [here]." To the force of the above
undeniable proposition, not even appellant is insensible. It does not dispute it. Nor could it successfully do so even if it
were so minded.
2. In the face of such incontrovertible doctrines that argue in a rather conclusive fashion for the legality of the challenged
order, how does appellant, Benguet Consolidated, Inc. propose to carry the extremely heavy burden of persuasion of
precisely demonstrating the contrary? It would assign as the basic error allegedly committed by the lower court its
"considering as lost the stock certificates covering 33,002 shares of Benguet belonging to the deceased Idonah Slade
Perkins, ..."9 More specifically, appellant would stress that the "lower court could not "consider as lost" the stock
certificates in question when, as a matter of fact, his Honor the trial Judge knew, and does know, and it is admitted by the
appellee, that the said stock certificates are in existence and are today in the possession of the domiciliary administrator in
New York."10

There may be an element of fiction in the above view of the lower court. That certainly does not suffice to call for the
reversal of the appealed order. Since there is a refusal, persistently adhered to by the domiciliary administrator in New
York, to deliver the shares of stocks of appellant corporation owned by the decedent to the ancillary administrator in the
Philippines, there was nothing unreasonable or arbitrary in considering them as lost and requiring the appellant to issue
new certificates in lieu thereof. Thereby, the task incumbent under the law on the ancillary administrator could be
discharged and his responsibility fulfilled.

Any other view would result in the compliance to a valid judicial order being made to depend on the uncontrolled
discretion of the party or entity, in this case domiciled abroad, which thus far has shown the utmost persistence in refusing
to yield obedience. Certainly, appellant would not be heard to contend in all seriousness that a judicial decree could be
treated as a mere scrap of paper, the court issuing it being powerless to remedy its flagrant disregard.

It may be admitted of course that such alleged loss as found by the lower court did not correspond exactly with the facts.
To be more blunt, the quality of truth may be lacking in such a conclusion arrived at. It is to be remembered however,
again to borrow from Frankfurter, "that fictions which the law may rely upon in the pursuit of legitimate ends have played
an important part in its development." 11

Speaking of the common law in its earlier period, Cardozo could state fictions "were devices to advance the ends of
justice, [even if] clumsy and at times offensive." 12 Some of them have persisted even to the present, that eminent jurist,
noting "the quasi contract, the adopted child, the constructive trust, all of flourishing vitality, to attest the empire of "as if"
today."13 He likewise noted "a class of fictions of another order, the fiction which is a working tool of thought, but which
at times hides itself from view till reflection and analysis have brought it to the light." 14

What cannot be disputed, therefore, is the at times indispensable role that fictions as such played in the law. There should
be then on the part of the appellant a further refinement in the catholicity of its condemnation of such judicial technique. If
ever an occasion did call for the employment of a legal fiction to put an end to the anomalous situation of a valid judicial
order being disregarded with apparent impunity, this is it. What is thus most obvious is that this particular alleged error
does not carry persuasion.

3. Appellant Benguet Consolidated, Inc. would seek to bolster the above contention by its invoking one of the provisions
of its by-laws which would set forth the procedure to be followed in case of a lost, stolen or destroyed stock certificate; it
would stress that in the event of a contest or the pendency of an action regarding ownership of such certificate or
certificates of stock allegedly lost, stolen or destroyed, the issuance of a new certificate or certificates would await the
"final decision by [a] court regarding the ownership [thereof]." 15

Such reliance is misplaced. In the first place, there is no such occasion to apply such by-law. It is admitted that the foreign
domiciliary administrator did not appeal from the order now in question. Moreover, there is likewise the express
admission of appellant that as far as it is concerned, "it is immaterial ... who is entitled to the possession of the stock
certificates ..." Even if such were not the case, it would be a legal absurdity to impart to such a provision conclusiveness
and finality. Assuming that a contrariety exists between the above by-law and the command of a court decree, the latter is
to be followed.

It is understandable, as Cardozo pointed out, that the Constitution overrides a statute, to which, however, the judiciary
must yield deference, when appropriately invoked and deemed applicable. It would be most highly unorthodox, however,
if a corporate by-law would be accorded such a high estate in the jural order that a court must not only take note of it but
yield to its alleged controlling force.

The fear of appellant of a contingent liability with which it could be saddled unless the appealed order be set aside for its
inconsistency with one of its by-laws does not impress us. Its obedience to a lawful court order certainly constitutes a
valid defense, assuming that such apprehension of a possible court action against it could possibly materialize. Thus far,
nothing in the circumstances as they have developed gives substance to such a fear. Gossamer possibilities of a future
prejudice to appellant do not suffice to nullify the lawful exercise of judicial authority.

4. What is more the view adopted by appellant Benguet Consolidated, Inc. is fraught with implications at war with the
basic postulates of corporate theory.

We start with the undeniable premise that, "a corporation is an artificial being created by operation of law...." 16 It owes its
life to the state, its birth being purely dependent on its will. As Berle so aptly stated: "Classically, a corporation was
conceived as an artificial person, owing its existence through creation by a sovereign power." 17 As a matter of fact, the
statutory language employed owes much to Chief Justice Marshall, who in the Dartmouth College decision defined a
corporation precisely as "an artificial being, invisible, intangible, and existing only in contemplation of law." 18

The well-known authority Fletcher could summarize the matter thus: "A corporation is not in fact and in reality a person,
but the law treats it as though it were a person by process of fiction, or by regarding it as an artificial person distinct and
separate from its individual stockholders.... It owes its existence to law. It is an artificial person created by law for certain
specific purposes, the extent of whose existence, powers and liberties is fixed by its charter." 19Dean Pound's terse
summary, a juristic person, resulting from an association of human beings granted legal personality by the state, puts the
matter neatly.20

There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which to quote from Friedmann, "is the
reality of the group as a social and legal entity, independent of state recognition and concession."21 A corporation as
known to Philippine jurisprudence is a creature without any existence until it has received the imprimatur of the state
according to law. It is logically inconceivable therefore that it will have rights and privileges of a higher priority than that
of its creator. More than that, it cannot legitimately refuse to yield obedience to acts of its state organs, certainly not
excluding the judiciary, whenever called upon to do so.

As a matter of fact, a corporation once it comes into being, following American law still of persuasive authority in our
jurisdiction, comes more often within the ken of the judiciary than the other two coordinate branches. It institutes the
appropriate court action to enforce its right. Correlatively, it is not immune from judicial control in those instances, where
a duty under the law as ascertained in an appropriate legal proceeding is cast upon it.

To assert that it can choose which court order to follow and which to disregard is to confer upon it not autonomy which
may be conceded but license which cannot be tolerated. It is to argue that it may, when so minded, overrule the state, the
source of its very existence; it is to contend that what any of its governmental organs may lawfully require could be
ignored at will. So extravagant a claim cannot possibly merit approval.

5. One last point. In Viloria v. Administrator of Veterans Affairs, 22 it was shown that in a guardianship proceedings then
pending in a lower court, the United States Veterans Administration filed a motion for the refund of a certain sum of
money paid to the minor under guardianship, alleging that the lower court had previously granted its petition to consider
the deceased father as not entitled to guerilla benefits according to a determination arrived at by its main office in the
United States. The motion was denied. In seeking a reconsideration of such order, the Administrator relied on an
American federal statute making his decisions "final and conclusive on all questions of law or fact" precluding any other
American official to examine the matter anew, "except a judge or judges of the United States court." 23 Reconsideration
was denied, and the Administrator appealed.

In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of the opinion that the appeal should
be rejected. The provisions of the U.S. Code, invoked by the appellant, make the decisions of the U.S. Veterans'
Administrator final and conclusive when made on claims property submitted to him for resolution; but they are not
applicable to the present case, where the Administrator is not acting as a judge but as a litigant. There is a great difference
between actions against the Administrator (which must be filed strictly in accordance with the conditions that are imposed
by the Veterans' Act, including the exclusive review by United States courts), and those actions where the Veterans'
Administrator seeks a remedy from our courts and submits to their jurisdiction by filing actions therein. Our attention has
not been called to any law or treaty that would make the findings of the Veterans' Administrator, in actions where he is a
party, conclusive on our courts. That, in effect, would deprive our tribunals of judicial discretion and render them mere
subordinate instrumentalities of the Veterans' Administrator."

It is bad enough as the Viloria decision made patent for our judiciary to accept as final and conclusive, determinations
made by foreign governmental agencies. It is infinitely worse if through the absence of any coercive power by our courts
over juridical persons within our jurisdiction, the force and effectivity of their orders could be made to depend on the
whim or caprice of alien entities. It is difficult to imagine of a situation more offensive to the dignity of the bench or the
honor of the country.

Yet that would be the effect, even if unintended, of the proposition to which appellant Benguet Consolidated seems to be
firmly committed as shown by its failure to accept the validity of the order complained of; it seeks its reversal. Certainly
we must at all pains see to it that it does not succeed. The deplorable consequences attendant on appellant prevailing attest
to the necessity of negative response from us. That is what appellant will get.

That is all then that this case presents. It is obvious why the appeal cannot succeed. It is always easy to conjure extreme
and even oppressive possibilities. That is not decisive. It does not settle the issue. What carries weight and conviction is
the result arrived at, the just solution obtained, grounded in the soundest of legal doctrines and distinguished by its
correspondence with what a sense of realism requires. For through the appealed order, the imperative requirement of
justice according to law is satisfied and national dignity and honor maintained.

WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the Court of First Instance, dated May
18, 1964, is affirmed. With costs against oppositor-appelant Benguet Consolidated, Inc.
CYNTHIA C. ALABAN, G.R. No. 156021
FRANCIS COLLADO, JOSE
P. COLLADO, JUDITH Present:
PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PUNO, J.,
PROVIDO, JR., LORNA DINA Chairman,
E. PROVIDO, SEVERO ARENGA, AUSTRIA-MARTINEZ,
JR., SERGIO ARENGA, EDUARDO CALLEJO, SR.,
ARENGA, CAROL ARENGA, RUTH TINGA, and
BABASA, NORMA HIJASTRO, CHICO-NAZARIO, JJ.
DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Promulgated:
Petitioners,
September 23, 2005

- versus -

COURT OF APPEALS and

FRANCISCO H. PROVIDO,
Respondents.
x-------------------------------------------------------------------x

DECISION
TINGA, J.:

This is a petition for review of the Resolutions[1] of the

Court of Appeals (CA) in CA-G.R. SP No. 69221,[2] dismissing petitioners petition for annulment of judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP Proc. No. 00-
135, for the probate of the Last Will and Testament[3] of the late Soledad Provido Elevencionado (decedent), who died on
26 October 2000 in Janiuay, Iloilo.[4] Respondent alleged that he was the heir of the decedent and the executor of her will.
On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas, Iloilo, rendered
its Decision,[5] allowing the probate of the will of the decedent and directing the issuance of letters testamentary to
respondent.[6]

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the reopening of the probate
proceedings.[7]Likewise, they filed an opposition to the allowance of the will of the decedent, as well as the issuance of
letters testamentary to respondent,[8] claiming that they are the intestate heirs of the decedent. Petitioners claimed that the
RTC did not acquire jurisdiction over the petition due to non-payment of the correct docket fees, defective publication, and
lack of notice to the other heirs. Moreover, they alleged that the will could not have been probated because: (1) the signature
of the decedent was forged; (2) the will was not executed in accordance with law, that is, the witnesses failed to sign below
the attestation clause; (3) the decedent lacked testamentary capacity to execute and publish a will; (4) the will was executed
by force and under duress and improper pressure; (5) the decedent had no intention to make a will at the time of affixing of
her signature; and (6) she did not know the properties to be disposed of, having included in the will properties which no
longer belonged to her. Petitioners prayed that the letters testamentary issued to respondent be withdrawn and the estate of
the decedent disposed of under intestate succession.[9]

On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for being unmeritorious. Resolving the issue
of jurisdiction, the RTC held that petitioners were deemed notified of the hearing by publication and that the deficiency in
the payment of docket fees is not a ground for the outright dismissal of the petition. It merely required respondent to pay
the deficiency.[11] Moreover, the RTCs Decision was already final and executory even before petitioners filing of the motion
to reopen.[12]

Petitioners thereafter filed a petition[13] with an application for preliminary injunction with the CA, seeking the annulment
of the RTCs Decision dated 30 May 2001 and Order dated 11 January 2002. They claimed that after the death of the
decedent, petitioners, together with respondent, held several conferences to discuss the matter of dividing the estate of the
decedent, with respondent agreeing to a one-sixth (1/6) portion as his share. Petitioners allegedly drafted a compromise
agreement to implement the division of the estate. Despite receipt of the agreement, respondent refused to sign and return
the same. Petitioners opined that respondent feigned interest in participating in the compromise agreement so that they
would not suspect his intention to secure the probate of the will.[14] They claimed that they learnt of the probate proceedings
only in July of 2001, as a result of which they filed their motion to reopen the proceedings and admit their opposition to the
probate of the will only on 4 October 2001. They argued that the RTC Decision should be annulled and set aside on the
ground of extrinsic fraud and lack of jurisdiction on the part of the RTC. [15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition. It found that there was no showing
that petitioners failed to avail of or resort to the ordinary remedies of new trial, appeal, petition for relief from judgment, or
other appropriate remedies through no fault of their own. [17] Moreover, the CA declared as baseless petitioners claim that
the proceedings in the RTC was attended by extrinsic fraud. Neither was there any showing that they availed of this ground
in a motion for new trial or petition for relief from judgment in the RTC, the CA added.[18] Petitioners sought reconsideration
of the Resolution, but the same was denied by the CA for lack of merit.[19]
Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion amounting to lack of
jurisdiction when it dismissed their petition for the alleged failure to show that they have not availed of or resorted to the
remedies of new trial, appeal, petition for relief from judgment or other remedies through no fault of their own, and held
that petitioners were not denied their day in court during the proceedings before the RTC.[20] In addition, they assert that
this Court has yet to decide a case involving Rule 47 of the Rules of Court and, therefore, the instant petition should be
given due course for the guidance of the bench and bar. [21]

For his part, respondent claims that petitioners were in a position to avail of the remedies provided in Rules 37 and 38, as
they in fact did when they filed a motion for new trial. [22] Moreover, they could have resorted to a petition for relief from
judgment since they learned of the RTCs judgment only three and a half months after its promulgation. [23] Respondent
likewise maintains that no extrinsic fraud exists to warrant the annulment of the RTCs Decision, since there was no showing
that they were denied their day in court. Petitioners were not made parties to the probate proceedings because the decedent
did not institute them as her heirs.[24] Besides, assuming arguendo that petitioners are heirs of the decedent, lack of notice
to them is not a fatal defect since personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional
requisite.[25] Finally, respondent charges petitioners of forumshopping, since the latter have a pending suit involving the
same issues as those in SP No. 00-135, that is SP No. 1181[26] filed before Branch 23, RTC of General Santos City and
subsequently pending on appeal before the CA in CA-G.R. No.74924.[27]

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of the decedent, filed a
petition for letters of administration with the RTC of General Santos City, claiming that the decedent died intestate without
any issue, survived by five groups of collateral heirs. Flores, armed with a Special Power of Attorney from most of the other
petitioners, prayed for her appointment as administratrix of the estate of the decedent. The RTC dismissed the petition on
the ground of lack of jurisdiction, stating that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a
petition for the settlement of the estate of a decedent is the place where the decedent died. This is also in accordance with
the rule that the first court acquiring jurisdiction shall continue hearing the case to the exclusion of other courts, the RTC
added.[28] On 9 January 2002, Flores filed a Notice of Appeal [29] and on 28 January 2002, the case was ordered forwarded
to the CA.[30]

Petitioners maintain that they were not made parties to the case in which the decision sought to be annulled was
rendered and, thus, they could not have availed of the ordinary remedies of new trial, appeal, petition for relief from
judgment and other appropriate remedies, contrary to the ruling of the CA. They aver that respondents offer of a false
compromise and his failure to notify them of the probate of the will constitute extrinsic fraud that necessitates the annulment
of the RTCs judgment.[31]

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the ground of fraud,
accident, mistake, or excusable negligence. The same
Rule permits the filing of a motion for reconsideration on the grounds of excessive award of damages, insufficiency
of evidence to justify the decision or final order, or that the decision or final order is contrary to law. [32] Both motions should
be filed within the period for taking an appeal, or fifteen (15) days from notice of the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or final
order is entered, or any other proceeding is thereafter taken, against a party in any court through fraud, accident, mistake,
or excusable negligence. Said party may file a petition in the same court and in the same case to set aside the judgment,
order or proceeding. It must be filed within sixty (60) days after the petitioner learns of the judgment and within six (6)
months after entry thereof.[33]

A motion for new trial or reconsideration and a petition for relief from judgment are remedies available only to parties in
the proceedings where the assailed judgment is rendered.[34] In fact, it has been held that a person who was never a party to
the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment.[35]

However, petitioners in this case are mistaken in asserting that they are not or have not become parties to the probate
proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person interested in the
estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. [36] Notice
of the time and place for proving the will must be published for three (3) consecutive weeks, in a newspaper of general
circulation in the province,[37] as well as furnished to the designated or other known heirs, legatees, and devisees of the
testator.[38] Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the corresponding
publication of the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the
estate of the decedent.[39]

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be
minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that
brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. [40] Thus, even
though petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence
of the publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for new trial or
reconsideration and petition for relief from judgment. In fact, petitioners filed a motion to reopen, which is essentially a
motion for new trial, with petitioners praying for the reopening of the case and the setting of further proceedings. However,
the motion was denied for having been filed out of time, long after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final, they could have still filed a petition for
relief from judgment after the denial of their motion to reopen. Petitioners claim that they learned of the Decision only on
4 October 2001, or almost four (4) months from the time the Decision had attained finality. But they failed to avail of the
remedy.

For failure to make use without sufficient justification of the said remedies available to them, petitioners could no
longer resort to a petition for annulment of judgment; otherwise, they would benefit from their own inaction or
negligence.[41]

Even casting aside the procedural requisite, the petition for annulment of judgment must still fail for failure to comply with
the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be
annulled was rendered.[42] The purpose of such action is to have the final and executory judgment set aside so that there will
be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from
judgment, or other appropriate remedies are no longer available through no fault of the petitioner, [43] and is based on only
two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. [44] A person need not be a party to the
judgment sought to be annulled, and it is only essential that he can prove his allegation that the judgment was obtained by
the use of fraud and collusion and he would be adversely affected thereby. [45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in
character.[46] Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case
to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured.
The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented
a party from having his day in court.[47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents deliberate omission or
concealment of their names, ages and residences as the other heirs of the decedent in his petition for allowance of the will,
they were not notified of the proceedings, and thus they were denied their day in court. In addition, they claim that
respondents offer of a false compromise even before the filing of the petition prevented them from appearing and opposing
the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees of the
testator.[48] A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews
and nieces of the decedent, are neither compulsory nor testate heirs[49] who are entitled to be notified of the probate
proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to
personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by the
publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a
jurisdictional requisite.[50]

The non-inclusion of petitioners names in the petition and the alleged failure to personally notify them of the
proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from
participating in the proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists of filing multiple
suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the
same or related causes and/or to grant the same or substantially same reliefs, [51] on the supposition that one or the other
court would make a favorable disposition.[52] Obviously, the parties in the instant case, as well as in the appealed case before
the CA, are the same. Both cases deal with the existence and validity of the alleged will of the decedent, with petitioners
anchoring their cause on the state of intestacy. In the probate proceedings, petitioners position has always been that the
decedent left no will and if she did, the will does not comply with the requisites of a valid will. Indeed, that position is the
bedrock of their present petition. Of course, respondent maintains the contrary stance. On the other hand, in the petition for
letters of administration, petitioner Flores prayed for her appointment as administratrix of the estate on the theory that the
decedent died intestate. The petition was dismissed on the ground of lack of jurisdiction, and it is this order of dismissal
which is the subject of review in CA-G.R. No. 74924. Clearly, therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their certification against forum-
shopping. Neither have they done so at any time thereafter. The Court notes that even in the petition for annulment of
judgment, petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the notice
of appeal was filed way before the petition for annulment of judgment was instituted.

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.